A year after Loper Bright: textualism, shadow Skidmore, and a new major questions exception

Clear Statements is a recurring series by Abbe R. Gluck on civil litigation and the modern regulatory and statutory state.

As most SCOTUSblog readers know, just over a year ago, the court decided Loper Bright Enterprises v. Raimondo, overruling what had been among the most cited cases in the U.S. Reports: Chevron v. Natural Resources Defense Council. Loper Bright marked the end of a 40-year regime under which, if a statute regulating an agency contained ambiguous terms, courts generally would defer to the agency’s expertise in resolving those ambiguities – even if that meant that statutory meaning could change from one administration to the next.

Loper Bright put an end to that model of deference. In so doing, it left in its wake open questions about the future of judicial review of agency interpretations – questions that last term’s decisions only started to answer. As the new 2025-26 term unfolds, there are at least three doctrinal shifts worth watching. 

Textualism, instead of deference, for agency actions

Loper Bright not only instructs courts to use their own independent judgment when interpreting statutes – even on technical questions – but also directs them to find the single best meaning of the statute. That direction means that statutory meaning, once found, will remain fixed (that’s what “single best” means). As importantly, it also shifts the entire inquiry to an ordinary question of statutory interpretation. And the upshot, in a word, is textualism. We are going to see justifications for agency action – whether it’s the agency writing the rules, the lawyers briefing them, or the courts deciding disputes about them – newly couched in the highly textualist vernacular preferred by the current court. Tools like dictionaries, so-called ordinary meaning, grammar rules, and structural cues from the U.S. Code will carry the day, even though agencies themselves have traditionally relied on broader statutory goals, legislative history, and practical considerations. That shift is something that merits tracking.

Shadow Skidmore’s survival

Potentially even more interesting is the future of Skidmore v. Swift & Co., the pre-Chevron administrative-deference standard, under which courts would give respect to agency interpretations to the extent they were persuasive – an optional and inconsistently applied form of deference. The Supreme Court cited Skidmore with approval nine times in Loper Bright itself across both the majority opinion and Justice Neil Gorsuch’s concurrence – a strong indication that the justices expected it to survive. But over the entire first year following Loper, the court did not write the word “Skidmore” once.

That does not mean the doctrine is dead – yet. Indeed, Skidmore seemed to lurk in the shadows throughout the last term. Across several cases – including in majority opinions by Justice Brett Kavanaugh in Kennedy v. Braidwood Management (which upheld the structure of the U.S. Preventive Services Taskforce); Justice Elena Kagan in FCC v. Consumers’ Research (which rejected a nondelegation challenge to the FCC’s universal-service contribution scheme); and Gorsuch in Bondi v. VanDerStok (which held that the ATF could regulate weapon-parts kits under the Gun Control Act of 1968) – the court invoked what might be called “Shadow Skidmore.” In each case, the court first interpreted the statute itself, and then noted that the agency had long adopted the same interpretation, treating that consistency as evidence that the court had gotten it right. Kavanaugh even used the word “buttresses.” But none cited Skidmore itself.

The terrain is more complex in the lower federal courts, where Skidmore sits not in the shadows but, in some circuits, on the chopping block. The U.S. Court of Appeals for the 6th and 11th Circuits have issued divided opinions on whether Skidmore survives Loper Bright. Nearly every other circuit has invoked Skidmore positively post-Loper, but in some, Skidmore invocations are becoming fewer and further in between.  

It is worth noting that many of the strongest Skidmore invocations appear to have come in cases involving interpretations by the Board of Immigration Appeals and the National Labor Relations Board; fewer have appeared in some areas that traditionally generated a great deal of Chevron jurisprudence, like environmental regulation and health care. One possibility for the reduction in citations may be due to recent changes of position by the executive branch that have made agencies less likely to invoke Skidmore, since Skidmore tends to privilege consistent agency views. But, even in those cases where Skidmore is invoked, one wonders what kind of work the case is actually doing. It is possible courts are paving, through the backdoor, a path back to something like Chevron, signifying a judicial desire to preserve agency expertise for at least very difficult questions. Indeed, recent circuit court opinions citing Skidmore have noted, for example, Congress’ silence on the matter at issue or that the question involved a position on a complex matter of policy – signals that the courts may have needed some support in answering those interpretive questions.

Skidmore also may be serving as a legitimating tool by courts aware that they are now being asked to decide technical matters in areas where they know they lack expertise. One is reminded here of the transition to textualism in the 1980s and the Burger court’s initial effort to cling to legislative history. As the court was moving toward a textualist regime during that period, one would often see opinions that were rigidly textualist but then added legislative history at the end to back up the result in an apparent effort to confirm that the court had gotten the question right – and to legitimate the textualist approach utilized. Recent citations to Skidmore, and especially the Supreme Court’s own indirect use of it, seem reminiscent of that approach. Just as the Supreme Court’s new textualists eventually dropped those backup references to legislative history, today’s judges may eventually drop Skidmore (or its indirect version) as technical cases based solely on textualist interpretation become more familiar. Shadow Skidmore may fade away.

Alternatively, over time, consistent agency views might remain in the mix but become just another of many items in the interpretive toolbox – like textual canons, policy presumptions, dictionaries, and legislative history. That approach could easily suit the lower federal courts, which have always been more eclectic in what sources they consult in the process of statutory interpretation. But it could be hard to square with the current Supreme Court’s more rigid textualism. This is another area to watch closely this term.

A presidential foreign policy/national security exception to the major questions doctrine?

Finally, the third area worth watching is the major questions doctrine, the presumption that Congress does not delegate questions of “vast economic and political significance” to agencies unless those delegations are explicit. Notably, Loper Bright did not alter, or even mention, the MQD. Even before Chevron was overruled, the court already had decided that ambiguity alone could not justify exceptionally broad delegations. And while the court in Loper Bright did say that Congress could still signal intent to delegate with broad statutory terms like “reasonable,” lurking behind that statement were the court’s prior holdings indicating that the MQD would also be there to cabin the extent of those delegations.

In other words, even before Loper Bright, the MQD was already baked into the very concept of “ordinary meaning.” Whether you’re clarifying ambiguity or identifying the single best reading, the MQD yields the same result: courts will not assume that Congress delegated major decisions unless the text says so explicitly. The “single best” reading of a statute, then, is generally one that incorporates that assumption.

Things got more interesting, however, in FCC v. Consumers’ Research, decided at the end of this past term. Kagan’s opinion for the court upheld the FCC’s universal-service contributions under the nondelegation doctrine. But Kavanaugh concurred, apparently to lay some groundwork on the MQD.

First, Kavanaugh made some observations about the intersection of Loper Bright and the MQD. He noted that those developments should alleviate concerns about delegation because, post-Loper, courts’ independent judgment now substitutes for agency discretion, and the MQD operates as a further backstop against agencies going rogue.

But in the same opinion – and this is the curveball – Kavanaugh carved out a potential exception to the MQD. He noted that the nondelegation doctrine has had a “limited role” in the contexts of national security and foreign policy, due to the president’s Article II powers and the degree of discretion Congress often affords the president in those areas. As such, he argued, the MQD should not apply to those realms. Specifically, Kavanaugh argued that the MQD “does not reflect ordinary congressional intent in those areas.” In other words, when determining ordinary meaning in the national security/foreign affairs arena in a post-Loper Bright statutory interpretation analysis, Kavanaugh’s argument is that the ordinary interpreter could assume the likelihood of a major delegation to the president.

The court does not usually carve out certain subject areas from its statutory interpretation rules, and so Kavanaugh’s excising exercise here is noteworthy for that alone. But it is also worth pausing on in light of the upcoming oral argument in Learning Resources Inc. v. Trump/Trump v. V.O.S. Selections, Inc., in which the administration’s authority to issue tariffs under the International Emergency Economic Powers Act has been challenged as a violation of the MQD. One wonders if Kavanaugh’s Consumers’ Research concurrence was an attempt to lay a foundation for the arguments in the tariff case. Indeed, the dissent in the U.S. Court of Appeals for the Federal Circuit’s decision striking down the tariffs quoted Kavanaugh’s concurrence, and the solicitor general has since seized on that reasoning.

So, while Chevron is dead, the administrative state still breathes. But it does so under a new framework – one grounded in text, constrained by an MQD whose boundaries are now unclear, and shaped by the faint, flickering shadow of Skidmore. This term should tell us a lot more about whether and how these doctrines will endure.